Peo v. Walker

22CA1789 Peo v Walker 05-15-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1789
El Paso County District Court No. 20CR6300
Honorable Jessica L. Curtis, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brian Keith Walker,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE FREYRE
Gomez and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 15, 2025

Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Patrick R. Henson, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 Defendant, Brian Keith Walker, appeals jury verdict convicting

him of possession with the intent to manufacture or distribute a

schedule I or II controlled substance, possession of a controlled

substance, and possession of drug paraphernalia. We affirm.

I. Background

¶2 In November 2020, while conducting surveillance at a motel in

a high-crime area known for drug dealing, police officers observed

Walker get out of a car, grab something from the rear seat, and stuff

it into his pants pocket. After unsuccessfully attempting to enter a

motel room, Walker returned to his car, removed the unknown item

from his pants, and placed it in the trunk. The officers proceeded

to follow Walker’s car before stopping him for a traffic infraction.

During the stop, the officers saw a clear, bulbous pipe containing a

burnt white residue in the center console. The officers searched the

car and seized three glass pipes; multiple plastic bags of substances

that tested positive for methamphetamine, cocaine, and marijuana;

and approximately $300 in cash.

¶3 The State charged Walker with multiple drug-related offenses.

Following a two-day trial, the jury convicted him of possession with

the intent to manufacture or distribute a schedule I or II controlled

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substance, possession of a controlled substance, and possession of

drug paraphernalia. The trial court sentenced Walker to twelve

years in the custody of the Department of Corrections.

¶4 Walker challenges his convictions and contends that the trial

court erroneously (1) denied him substitute counsel and (2) violated

his constitutional right to self-representation. We address and

reject each of his contentions.

II. Substitute Counsel

¶5 First, Walker contends that the trial court abused its

discretion and reversibly erred when it denied his requests for

substitute counsel. We are not persuaded.

A. Additional Facts

¶6 As relevant here, Walker was represented by two court-

appointed attorneys from the Colorado Public Defender’s Office.

Walker’s first attorney left the office before Walker’s trial, and new

counsel stepped in. The court granted Walker five conflict hearings

to resolve Walker’s alleged issues with his new counsel. At all five

hearings, the court found no conflict.

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1. Hearing on June 7, 2021

¶7 At his arraignment, Walker informed the court that he did not

want to speak with his counsel because there was an “actual

conflict.” The trial court conducted an ex parte hearing. Walker

argued that prior counsel said he was filing a motion to dismiss the

case because the evidence had not been tested. Walker’s new

counsel advised him that the evidence was tested, but Walker did

not believe him.

¶8 Walker also expressed frustration regarding the delay of his

preliminary hearing and said his new attorney gave him conflicting

information. The court reminded Walker that his preliminary

hearing was originally set for April 19, but because he had failed to

appear, the court rescheduled the hearing for April 26. When

Walker failed to appear a second time, the court found a waiver of

the preliminary hearing. The court explained to Walker that this

was a legal decision that had nothing to do with counsel’s

representation.

¶9 Nevertheless, Walker said he did not want his counsel to

represent him and that he wanted to “move forward with [his]

preliminary with a new attorney.” The court asked counsel if there

3
was a conflict of interest, and counsel responded, “No.” Counsel

said he and Walker met for an hour the previous week and

discussed the “bulk” of Walker’s complaints.

¶ 10 The trial court found no conflict of interest, reasoning that

Walker’s contentions were primarily regarding the treatment he

received from the court’s rulings, not his counsel. Walker asked for

another conflict hearing at his next arraignment, but the court

denied this request and found no new issues had been raised.1

2. Hearing on August 9, 2021

¶ 11 The next month, Walker requested another conflict hearing,

stating that “the communication [with his attorney] was just not

there” and that his attorney was “not aggressive enough.” The

court conducted an ex parte conflict hearing.

1 Walker did not provide a transcript of this hearing as part of the

appellate record, so we must assume the correctness of the court’s
ruling. See People v. Duran, 2015 COA 141, ¶ 12 (“It is the
appellant’s responsibility to designate the record on appeal,
including those parts of the trial proceedings that are necessary for
purposes of the appeal . . . .”); see also People v. Wells, 776 P.2d
386, 390 (Colo. 1989) (concluding that any facts not appearing in
the record cannot be reviewed and that the presumption is that the
material portions omitted would support the judgment).

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¶ 12 Walker again argued that counsel was responsible for the

errors surrounding his preliminary hearing and that counsel should

not have waived the hearing. The court reminded Walker that “[his

counsel] didn’t waive [Walker’s] preliminary hearing” because the

court found Walker’s lack of appearance to be a waiver. Walker

also faulted counsel for not filing a motion to dismiss. Walker also

said counsel showed no interest in his case, did not do any

investigation, and was incompetent.

¶ 13 Counsel explained that Walker was upset with him after he

told Walker that he did not believe previous counsel said the case

would be dismissed. Counsel said Walker’s continued frustration

over losing his preliminary hearing constituted most of their

conversations “in the last couple of months,” even after counsel’s

multiple attempts to explain that Walker had waived his

preliminary hearing.

¶ 14 After “observing [the parties’] demeanor,” the trial court found

no conflict of interest.

3. Hearing on November 8, 2021

¶ 15 Walker requested another conflict hearing at the pretrial

readiness conference, and the court granted his request. Walker

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explained that he and counsel were “just not seeing eye to eye on a

lot of things.” After reviewing the testing results of the evidence

seized from the car, Walker believed the evidence “need[ed] to be

tested further.” He said that counsel laughed at him and that he

was just “not comfortable with [counsel] at all.”

¶ 16 In response, counsel explained that during a Webex call,

Walker had “scream[ed]” at him to research “baking soda and

sodium bicarbonate,” claiming that was what he possessed. He

Googled Walker’s search terms, “cracked a smile kind of while [he]

was being screamed at,” and showed Walker the results on his

phone. Counsel explained he had reviewed both the discovery and

the test results with Walker.

¶ 17 The trial court again found no conflict. Walker proceeded to

tell the court that parts of what his counsel told the court were

“fictious” and that he still “[didn’t] know to this day who waived [his]

preliminary hearing.” Walker again asked for substitute counsel,

which the court denied.

4. Hearing on March 1, 2022

¶ 18 On the first day of trial, Walker raised his earlier concerns

with counsel. The court asked whether there was any new

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information, and Walker responded that counsel told him that he

“works for somebody else” and that counsel was not representing

his best interest. The court conducted another conflict hearing.

¶ 19 Counsel explained that a recent conversation with Walker had

devolved into an argument concerning the preliminary hearing and

motion to dismiss issues. Additionally, Walker sought to admit a

letter from previous counsel at trial, and counsel said he would not

do so without seeing the letter first. Counsel also clarified that in

response to Walker’s comment that counsel worked for him,

counsel said, “No, I represent you. I work for the Public Defender’s

Office.”

¶ 20 The court then explained that the admission of evidence was a

strategic decision that counsel made. Walker then argued that the

“main piece of evidence . . . [was] the 17.7 ounces of baking soda,”

which was not “field tested,” and that if he’d had his preliminary

hearing, this evidence “would have never been able to be

introduced.” The court reminded Walker that it was the court’s

decision to find a waiver of his preliminary hearing and that counsel

could decide, as a matter of strategy, whether to file a motion to

dismiss. The court found no conflict of interest.

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5. Hearing on March 2, 2022

¶ 21 On the second day of trial, Walker raised an issue concerning

a prosecution witness. The trial court conducted another conflict

hearing.

¶ 22 Walker complained that counsel had called his girlfriend, a

prosecution witness, without Walker being present for the call. He

said he and counsel disagreed about whether to call her as a

defense witness and said counsel believed she had “massive

credibility issues.”

¶ 23 Walker also explained that he had an insufficient amount of

time to consider the plea offer or to discuss it with counsel and was

simply told there was “an offer on the table.” Walker said he

wanted to accept the offer before the trial started but learned that it

was “off the table.” Counsel said the plea offer was made in

January 2022 and was available until the week before the trial.

Each time they had discussed the offer, Walker said he would not

take a “DF3, cap six” and that “it should have been a DF4 or lower,

if [they] had gone to preliminary hearing.” Counsel said he had

spoken to the prosecutor and asked if the plea offer was still

available but was told “absolutely not.”

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¶ 24 Walker then argued that counsel had not “investigate[d]

certain things” such as why Walker was at a motel. Counsel

responded that there was no surveillance footage from the motel to

investigate. He also said that Walker had given him a Google

search printout to support Walker’s belief that a chemical test of

sodium bicarbonate would show as cocaine. Counsel said his own

research did not support Walker’s claim.

¶ 25 The trial court again found no conflict and said it was

counsel’s strategic decision whether to call Walker’s girlfriend as a

witness. Walker then admitted he was not “saying there [was] a

conflict” with his counsel but instead felt as though they could have

discussed “some important things” had Walker been present at the

pretrial conference. The court reminded Walker that his counsel

had scheduled a meeting with Walker after the pretrial conference,

but Walker refused to go. Counsel confirmed that Walker had never

scheduled any appointments with him after the pretrial conference

and did not appear for the two appointments counsel had

scheduled.

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B. Standard of Review and Applicable Law

¶ 26 We review a trial court’s decision to deny substitute counsel

for an abuse of discretion. People v. Weeks, 2015 COA 77, ¶ 101. A

trial court abuses its discretion when its ruling is manifestly

arbitrary, unreasonable, or unfair, or when it misapplies the law.

See People v. Johnson, 2021 CO 35, ¶ 16.

¶ 27 Although an indigent criminal defendant has a constitutional

right to counsel, they do not have a right to their counsel of choice.

U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16; see also

People v. Arguello, 772 P.2d 87, 92 (Colo. 1989). Moreover, the right

to counsel includes the effective assistance of counsel, “and does

not necessarily include ‘a meaningful attorney-client relationship.’”

Arguello, 772 P.2d at 92 (quoting Morris v. Slappy, 461 U.S. 1, 14

(1983)).

¶ 28 When an indigent criminal defendant objects to court-

appointed counsel, the court must inquire into the reasons for the

defendant’s dissatisfaction. People v. Bergerud, 223 P.3d 686, 694

(Colo. 2010); Arguello, 772 P.2d at 94. Before a substitution of

counsel is warranted, the court must determine whether the

defendant has a well-founded reason to believe court-appointed

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counsel either cannot or will not completely represent them.

Arguello, 772 P.2d at 94. “As long as the trial court has a

reasonable basis for believing that the lawyer-client relation has not

deteriorated to the point where counsel is unable to give effective

aid in the fair presentation of a defense, the court is justified in

refusing to appoint new counsel.” People v. Schultheis, 638 P.2d 8,

15 (Colo. 1981). If the defendant establishes good cause, such as a

conflict of interest, a complete breakdown of communication, or an

irreconcilable conflict that may lead to an unjust verdict, the court

must appoint substitute counsel. Arguello, 772 P.2d at 94.

¶ 29 Additionally, a conflict of interest exists when the attorney’s

ability to represent a client is materially limited by the attorney’s

own interests. People v. Stroud, 2014 COA 58, ¶ 38. To prove an

actual conflict of interest, a defendant must “identify something

that counsel chose to do or not do . . . and must show that the

course taken was influenced by that conflict.” Id. (quoting People v.

Kenny, 30 P.3d 734, 745 (Colo. App. 2000)).

¶ 30 Courts consider four factors in evaluating the constitutional

implications of a request for substitute counsel, including (1) the

timeliness of the defendant’s motion; (2) the adequacy of the court’s

11
inquiry; (3) whether the conflict between the defendant and their

attorney was so great that it resulted in a total lack of

communication or otherwise prevented an adequate defense; and

(4) whether the defendant substantially and unreasonably

contributed to the conflict with their attorney. Bergerud, 223 P.3d

at 695; see also People v. Session, 2020 COA 158, ¶ 15.

C. Analysis

¶ 31 We conclude that the trial court did not abuse its discretion

for two reasons. First, a true conflict of interest did not exist

between Walker and court-appointed counsel. A lawyer has a

conflict of interest when their loyalties are divided. See Colo. RPC

1.7, 1.9. An actual conflict of interest is one that is real and

substantial, whereas a potential conflict is one that is possible, is

nascent, or in all probability will arise. People v. Kelling, 151 P.3d

650, 657 (Colo. App. 2006) (citing People v. Harlan, 54 P.3d 871,

878 (Colo. 2002)). Neither the existence of animosity between

Walker and counsel nor Walker’s asserted disagreements with

counsel regarding hearings and plea bargains constitute an actual

or potential conflict of interest requiring the appointment of

substitute counsel. See People v. Garcia, 64 P.3d 857, 864 (Colo.

12
App. 2002) (finding that the conflict between defendant and his

counsel was a disagreement over strategy, and thus did not require

appointment of new counsel); People v. Apodaca, 998 P.2d 25, 28

(Colo. App. 1999) (counsel’s personal disbelief of defendant’s version

of the facts did not require court to appoint substitute counsel

based on an alleged conflict of interest).

¶ 32 Second, the record supports the conclusion that there was not

a complete breakdown in communication between Walker and

counsel. Mere communication difficulties do not demonstrate a

complete breakdown in communication. See People v. Thornton,

251 P.3d 1147, 1151 (Colo. App. 2010) (refusing to find a complete

breakdown in communication requiring substitute counsel even

though counsel admitted to “a lot of communication breakdowns”

because he assured the court that he was in contact with the

defendant and continued to represent his interests); People v.

Jenkins, 83 P.3d 1122, 1126 (Colo. App. 2003) (a complete

breakdown of communication was still not established where

counsel met with the defendant only once in nine months and had

not discussed potential witnesses with him or given him copies of

discovery); cf. United States v. Lott, 310 F.3d 1231, 1249 (10th Cir.

13
2002) (finding a total breakdown in communication because

counsel had never interviewed defendant before trial and defendant

was unable to contact counsel). Moreover, we are not convinced

that counsel’s laughter at Walker or the fact that they did not see

eye to eye amounts to a breakdown in communication. Morris, 461

U.S. at 14 (the right to counsel does not necessarily include a

meaningful attorney-client relationship).

¶ 33 Walker admitted and the record shows that he and counsel

continued to have conversations, which illustrates an ongoing

channel of communication. Walker and counsel continued to meet

and continued to disagree with each other over the preliminary

hearing waiver and matters of strategy. See Kelling, 151 P.3d at

653 (disagreements pertaining to matters of trial preparation,

strategy, and tactics do not establish good cause for substitution of

counsel); see also Bergerud, 223 P.3d at 693 (“On issues of trial

strategy, defense counsel is ‘captain of the ship.’” (quoting Arko v.

People, 183 P.3d 555, 558 (Colo. 2008))).

¶ 34 Finally, two of the errors Walker alleges were not a result of

counsel’s actions. As the trial court repeatedly mentioned, Walker’s

failure to appear for the second preliminary hearing formed the

14
basis for the court’s finding of a waiver, a legal ruling Walker does

not challenge on appeal. See People v. Abbott, 638 P.2d 781, 785

(Colo. 1981) (holding that the failure of the defendant to appear

constituted an implied waiver of the preliminary hearing). Further,

Walker does not assert that counsel failed to convey the plea

bargain offer to him. Instead, the record shows that Walker made

his decision to accept the plea offer after it had lapsed, which does

not establish good cause. See People v. Corson, 2016 CO 33, ¶ 35

(holding that in the plea context a defendant must demonstrate a

reasonable probability that, but for counsel’s errors, they would

have accepted the plea offer rather than going to trial); see also

People v. Jasper, 17 P.3d 807, 813-14 (Colo. 2001) (“A defendant

does not possess an absolute right to plead guilty,” and “[t]he use of

plea cutoff deadlines provides the trial court with a management

tool that increases the efficient operation of the courts for the

benefit of all citizens.”).

¶ 35 Accordingly, we discern no abuse of discretion in the court’s

denial of Walker’s request for substitute counsel.

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III. Self-Representation

¶ 36 Walker next contends that the trial court violated his

constitutional right to self-representation by (1) failing to ask if he

wished to continue with court-appointed counsel or represent

himself and (2) not advising him of his right to self-representation.

We disagree.

A. Standard of Review and Applicable Law

¶ 37 The United States and Colorado Constitutions extend an

indigent criminal defendant the right to self-representation. See

U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16. Before

proceeding pro se, a defendant must knowingly, intelligently, and

voluntarily waive their constitutional right to counsel. Arguello, 772

P.2d at 93. “Whether a defendant effectively waived the right to

counsel, and therefore can exercise the right to self-representation,

is a mixed question of fact and law.” People v. Lavadie, 2021 CO

42, ¶ 22. On appeal, we “accept the trial court’s findings of historic

fact if those findings are supported by competent evidence, but we

assess the legal significance of the facts de novo.” People v. Coke,

2020 CO 28, ¶ 10 (quoting People v. Davis, 2019 CO 24, ¶ 14); see

16
also People v. Johnson, 2015 COA 54, ¶ 15 (“We review de novo

whether a defendant was denied the right to self-representation.”).

¶ 38 Where a trial court determines that substitute counsel is not

warranted, “the court can insist that the defendant choose between

continued representation by existing counsel and appearing pro se.”

Arguello, 772 P.2d at 94. “A request stated in uncertain terms or in

uncertain manner cannot be regarded as a demand for self-

representation nor can it be considered as a waiver of the Sixth

Amendment right to counsel.” People v. Mogul, 812 P.2d 705, 709

(Colo. App. 1991). A defendant’s request for self-representation

must be unequivocal, and even where an unequivocal request is

made, the right might be waived through subsequent conduct

indicating the defendant’s vacillation on, or abandonment of, the

issue. See People v. Johnson, 2015 COA 54, ¶ 19; see also United

States v. Frazier-El, 204 F.3d 553, 558 (4th Cir. 2000) (holding that

an assertion of the right to self-representation must be clear and

unequivocal; knowing, intelligent, and voluntary; and timely).

17
B. Analysis

¶ 39 We discern no error because the record shows that the court

did advise Walker of his right to self-representation, and he never

asked to represent himself.

¶ 40 At the June 7 conflict hearing and after finding no conflict, the

trial court told Walker that “[his] options are to continue to be

represented by the office of the public defender at this time or

represent [him]self.” Walker never asked to represent himself but

instead focused on the conflict he had with his attorney and on the

loss of his preliminary hearing.

¶ 41 Additionally, at the hearing on November 8, Walker did not

ask to represent himself after the court found no conflict and told

him he would proceed with his present counsel.

¶ 42 Based on the record before us, we discern no evidence that

Walker made a clear, unequivocal request to represent himself. See

Mogul, 812 P.2d at 709. Moreover, consistent with People v. Harris,

914 P.2d 434, 438 (Colo. App. 1995), the case on which Walker

relies, we conclude that when a trial court denies a motion for

substitute counsel, it is not required to advise a defendant of his

choice to continue with counsel or proceed pro se, nor must the

18
court ask a defendant to elect between these two choices. See State

v. Darby, 2009 WI App 50, ¶ 21, (The “question of whether a trial

court has an obligation to inform a defendant of the right to self-

representation in the absence of a clear and unequivocal

declaration by the defendant appears to have been uniformly

answered in the negative.”); see also People v. Salazar, 141 Cal.

Rptr. 753, 761-62 (Ct. App. 1977) (rejecting a claim that the trial

court was required to advise of the right to self-representation after

court denied defendant’s request to dismiss counsel); United States

v. Martin, 25 F.3d 293, 296 (6th Cir. 1994) (“Where a defendant

merely expresses dissatisfaction with trial counsel’s performance, . .

. [the court] will not interpret this as a motion to proceed pro se;

instead, it will be understood as an appeal to the trial court’s

discretion to substitute counsel.”).

¶ 43 Accordingly, we discern no violation of Walker’s constitutional

right to self-representation.

IV. Disposition

¶ 44 The judgment is affirmed.

JUDGE GOMEZ and JUDGE MEIRINK concur.

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